CAFC rules against PTO in Wyeth suit

The U.S. Court of Appeals for the Federal Circuit denied an appeal by the U.S. Patent and Trademark Office in a suit brought by Wyeth and Elan Corp. plc (NYSE:ELN) seeking to extend the term of two patents covering antibodies against beta amyloid to treat Alzheimer's disease (AD). If the ruling stands, it could extend the term of U.S. patents by changing the way the PTO calculates how long to extend patent terms to compensate for delays in issuing the patent. One provision of U.S. law specifies that if the PTO misses deadlines for various steps in the review process, an extra day of patent term will be granted for each day of delay. A second provision provides a day of extension for each day the patent is delayed beyond three years from filing the application. However, the law specifies that if days of delay from both provisions overlap, they should not be double-counted in determining the total extension.

The PTO had interpreted the language of the law to mean that patents should be extended only by the longer of the two types of delay. But the CAFC agreed with the companies that the law provides for a patent to be extended by the combined delay under both provisions. The CAFC ruling affirms a 2008 ruling from the U.S. District Court for the District of Columbia. The PTO said it will conform to the CAFC's ruling while it considers whether to seek further review of the case. ...